The Articles of Incorporation of Holcim Ltd Rapperswil

The Articles of Incorporation of
Holcim Ltd
Rapperswil-Jona/SG/Switzerland
This is a translation of the original German version of the Articles of Incorporation.
The German version is the only legally binding and shall prevail in case of discrepancy.
May 6, 2010
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I.
Company Name, Registered Office, Purpose and Duration of the Company
Article 1
Under the name Holcim Ltd (Holcim AG) shall exist a corporation under Swiss law, of
undetermined duration, with its registered office in Rapperswil-Jona (Canton of St.
Gallen, Switzerland).
Article 2
The purpose of the Company is to participate in manufacturing, trade and financing
companies in Switzerland and abroad, in particular in the hydraulic binders industry and
other industries related thereto.
The Company may pursue any form of business directly or indirectly related to its
purpose or which is likely to promote it.
II.
Share Capital
Article 3
The Company has a share capital of CHF 654,172,752
which is divided into
327,086,376 registered shares of CHF 2 nominal value each, fully paid-in.
The General Meeting may resolve to convert registered shares into bearer shares, or
vice versa.
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Article 3 bis
The share capital may be increased by a maximum amount of CHF 2,844,700 by issuing
a maximum of 1,422,350 registered shares with a par value of CHF 2 each, which shall
be fully paid-in, through the exercise of conversion rights and/or warrants granted in
connection with the issuance of bonds or similar debt instruments by the Company or
one of its Group companies. The pre-emptive rights of the shareholders shall be
excluded. The current owners of conversion rights and/or warrants shall be entitled to
subscribe for the new shares. The conditions of the conversion rights and/or warrants
shall be determined by the board of Directors.
In connection with the issue of convertible or warrant-bearing bonds or any similar debt
instruments, the Board of Directors shall be authorized to restrict or deny the preemptive
rights of shareholders if, for purpose of an underwriting by a syndicate with subsequent
placement in the public, the issue of bonds or similar debt instruments seems, at the
given moment, the most suitable form of issuance to the company in particular regarding
the issue conditions, or if the convertible or warrant-bearing bonds are issued in
connection with the acquisition or the financing of the acquisition of an enterprise, parts
of an enterprise or participations.
If, in accordance with a resolution passed by the Board of Directors, convertible and/or
warrant bonds are not offered to the shareholders in advance, the following shall apply:
a)
Conversion rights may be exercised during a maximum period of 20 years, and
warrants may be exercised during a maximum period of 7 years, since the date of
the respective debt issue.
b)
New shares are issued in accordance with the conversion and/or warrant conditions
prevailing at the time. Convertible and/or warrant bonds shall be issued at market
conditions. The conversion or warrant price must at least equal the average of the
most recent price for the registered shares on the Swiss Exchange during the five
days preceding the determination of the definitive issue conditions for the
corresponding convertible and/or warrant bonds.
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The acquisition of shares through the exercise of conversion rights and/or warrants and
each subsequent transfer of the shares shall be subject to the restrictions of Art. 5 of
these Articles of Incorporation.
Article 4
The Company may issue its registered shares in the form of single certificates, global
certificates and uncertificated securities. Under the conditions set forth by statutory law,
the Company may convert its registered shares from one form into another form at any
time and without the approval of the shareholders. The Company shall bear the cost of
any such conversion.
If registered shares are issued in the form of single certificates or global certificates, they
shall bear the signatures of two persons authorized to sign for the Company. At least
one of the signatories must be a member of the Board of Directors. The signatures may
be facsimile signatures.
The shareholder has no right to demand a conversion of the form of the registered
shares. Each shareholder may, however, at any time request a written confirmation from
the Company of the registered shares held by such shareholder, as reflected in the
share register.
Intermediated securities based on registered shares of the Company cannot be
transferred by way of assignment. A security interest in any such intermediated
securities also cannot be granted by way of assignment.
Article 5
The Company shall, with respect to its registered shares, maintain a share register in
which the shareholders and beneficial owners are registered with regard to their names
and addresses.
Only persons registered as shareholders or beneficial owners of registered shares in the
share register shall be recognized as such by the Company.
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Acquirers of registered shares shall be registered upon request in the share register as
shareholders with the right to vote if they expressly declare to have acquired the
registered shares in their own name and for their own account.
If persons fail to expressly declare in their registration applications that they hold the
shares for their own account (the "Nominees"), the Board of Directors shall enter such
persons in the share register with the right to vote, provided that the Nominee has
entered into an agreement with the Company concerning his status, and further provided
that the Nominee is subject to a recognized bank or financial market supervision.
After hearing the registered shareholder or Nominee, the Board of Directors may cancel
any registration in the share register, with retroactive effect as of the date of registration,
which was made based on incorrect information. The relevant shareholder or Nominee
must be immediately informed of the cancellation.
The Board of Directors regulates the details and issues the instructions necessary for
compliance with the preceding provisions set forth in this Art. 5. In special cases, it may
grant exemptions from the rule concerning Nominees. The Board of Directors may
delegate its duties.
Article 6
In the event of an increase of the share capital by issuance of new shares, each
shareholder is entitled to the fraction of newly issued shares corresponding to the
proportion of his existing holdings
The General Meeting may suspend or revoke pre-emptive rights of shareholders for
good cause.
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III.
Corporate Structure
Article 7
The corporate bodies of the Company are:
A)
The General Meeting
B)
The Board of Directors
C)
The Auditors
A) The General Meeting
Article 8
The General Meeting of shareholders is the supreme body of the Company.
It has the following inalienable powers:
1.
the adoption and the amendment of the Articles of Incorporation and resolution on
merger and dissolution of the Company;
2. the approval of the annual report and of the consolidated financial statements;
3. the approval of the annual financial statement as well as the resolution on the use of
the balance sheet profit, in particular, the declaration of dividends;
4. the appointment and removal of the members of the Board of Directors and the
auditors;
5. the discharge of the members of the Board of Directors;
6. the passing of resolutions on all matters reserved to it by law, the Articles of
Incorporation or any by-laws or which are submitted to it by the Board of Directors or
the Auditors.
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Article 9
Each share which is registered in the share register with the right to vote has one vote.
Any shareholder may, by written power of attorney, have himself be represented at the
General Meeting by another shareholder with the right to vote.
The Company only accepts one representative per share. A shareholder holding more
than one share may be represented by only one representative.
Article 10
The General Meeting constitutes a quorum regardless of the number of shares
represented and the number of shareholders present; resolutions are passed by an
absolute majority of the votes allocated to the shares represented, unless Art. 704, para.
1 of the Swiss Code of Obligations provides otherwise. To determine the number of
shares represented, invalid and empty votes are not to be counted.
In addition to Art. 704 para. 1, the approval of at least two-thirds of the votes represented
and the absolute majority of the par value of shares represented shall be required for
resolutions of the General Meeting of shareholders with respect to:
a)
the removal of the restrictions set forth in Art. 5;
b)
the removal of the mandatory bid rule (Art. 22 para. 3 of the Stock
Exchange Act);
c)
the removal or amendment of this para. 2.
Article 11
The Ordinary General Meeting shall be held no later than 6 months after the end of the
financial year. It shall be called by the Board of Directors.
Extraordinary General Meetings shall be convened upon a resolution of the General
Meeting, or of the Board of Directors, or upon the request of the Auditors. One or more
shareholders together representing at least one tenth of the share capital of the
Company may also request the calling of an Extraordinary General Meeting; they shall
do so in writing, indicating the purpose of the Meeting.
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Shareholders whose combined holdings represent an aggregate nominal value of at
least one million francs may request items to be included in the agenda. A respective
written request listing the items shall be lodged with the Board of Directors at least 40
days prior to a General Meeting.
Article 12
The calling of the General Meeting stating the agenda items and motions as well as the
place and time of the Meeting, shall be published at least 20 days prior to the Meeting in
the Swiss Official Gazette of Commerce, and in any other newspapers designated by the
Board of Directors. Holders of registered shares whose names appear in the share
register may in addition be notified of the General Meeting by mail.
At least 20 days prior to the Ordinary General Meeting the business report and the
Auditor's report shall be made available for inspection by the shareholders at the
registered office of the Company. Holders of registered shares whose names appear in
the share register may be notified thereon by written notice.
Any shareholder may request that a copy of the business report and the Auditor's report
be immediately sent to him.
Article 13
The General Meeting shall be presided over by the Chairman of the Board of Directors,
in his absence, by the Deputy Chairman or another member of the Board of Directors.
The secretary shall be appointed by the Board of Directors. He does not need to be a
shareholder. The scrutineers shall be proposed by the Chairman and appointed by the
General Meeting by a show of hands ("offene Abstimmung").
The Minutes shall set forth:
1. the number, type, par value and classes of shares represented by shareholders,
corporate bodies, independent proxies of voting rights and proxies for deposited
shares;
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2. the resolutions and results of elections;
3. the requests for information and the respective replies;
4. the statements made for the record by shareholders.
The Minutes shall be signed by the Chairman, the secretary and the scrutineers.
The General Meeting shall pass its resolutions by a show of hands. The Chairman may,
however, at any time and in the interest of an accurate result, order a vote by secret
ballot. Shareholders controlling together one quarter of the votes represented may also
request resolutions and elections to be passed by secret ballot.
The Chairman can also have voting and elections conducted electronically. Electronic
voting and elections shall be equivalent to a vote by secret ballot.
B) The Board of Directors
Article 14
The Company shall be managed by a Board of Directors composed of at least 7
members. The members of the Board of Directors shall hold office for 3 years at most
and may be re-elected. A year shall be the period from one Ordinary General Assembly
of Shareholders to the next.
Members of the Board of Directors can stand for election for a new period of office of
three years at most before expiry of their term of office. The cycle of elections shall as
far as possible be arranged such that each year the term of office of approximately one
third of the members of the Board of Directors expires.
Article 15
The members of the Board of Directors must be shareholders or representatives of a
company that is a shareholder.
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Article 16
The Board of Directors designates among its members its Chairman and Deputy
Chairman, and appoints a secretary who does not need to be a member of the Board
nor shareholder.
Article 17
The Board of Directors shall meet at the invitation of the Chairman or Deputy Chairman.
Any member of the Board of directors may, stating the reasons, request the Chairman to
immediately call a meeting.
In order to constitute a quorum, at least half the members must be present. No
attendance quorum is required for the resolutions on an appeared and executed capital
increase and the corresponding amendment of the Articles of Incorporation.
Resolutions of the Board of Directors shall be passed by the majority of votes cast. In
case of a tie, the Chairman has a casting vote.
Resolutions may also be passed by way of written consent of the majority of the
members of the Board of Directors to a proposition, unless a member requests
discussion.
Article 18
The Board of Directors shall be authorized to decide on all matters which are not
expressly allocated to the General Meeting or other bodies of the Company by law, the
Articles of Incorporation, or any by-laws.
It has in particular the following duties:
1. the ultimate direction of the Company and the giving of necessary directives;
2. the supervision of the business report, the preparation of the General Meetings and
the implementation of its resolutions;
3. the establishment of the organization of the Company;
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4. the structuring of the accounting system and of the financial controls as well as the
financial planning;
5. the appointment and removal of the persons entrusted with the management and
representation of the Company;
6. the supervision of the persons entrusted with the management of the Company, in
particular in view of compliance with the law, the Articles of Incorporation, the
regulations governing the internal organization and the instructions;
7. the notification of the judge in the case of over indebtedness.
The Board of Directors is responsible for the regular minuting of its meetings and of the
General Meeting as well as of the regular keeping of the necessary account books.
It is also responsible that the preparation of the income statement and the balance sheet
are prepared in accordance with the requirements of law, that they are submitted to the
Auditors for examination and that they are presented, along with the written business
report, to the General Meeting.
Article 19
The Board of Directors is authorized to delegate the preparation and implementation of
its resolutions as well as the supervision of certain aspects of the business to
committees constituted by its members or to individual directors. In this case the Board
of Directors shall provide for adequate reporting.
The Board of Directors is further authorized to fully or partially delegate the management
of the Company to individual members or to third parties ("Direktoren", "Prokuristen") in
accordance with an organizational regulation.
The Board of Directors designates the persons authorized to bind the Company by their
signature as well as the form of their signature power.
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Article 20
As remuneration for their duties and responsibilities, the members of the Board of
Directors shall receive, in addition to reimbursement of their expenses, a fixed annual
board fee which is independent of the Company's business results. The amount thereof
is determined by the Board of Directors.
Special services rendered by individual members, in particular the activities of the
specifically delegated members of the Board of Directors pertaining to the management
or supervision of the business, may be appropriately remunerated by the Board of
Directors.
C) The Auditors
Article 21
An auditing company subject to governmental supervision as required by the provisions
of the law is to be appointed as auditors.
The ordinary general meeting shall elect the auditors for a term of one year. The rights
and duties of the auditors are determined by the provisions of the law.
IV.
Fiscal Year and Profit Allocation
Article 22
The annual financial statements shall be closed on December 31 of every year. The
establishment of the balance sheet and the calculation of the balance sheet profit shall
be governed by the principles of the Swiss Code of Obligations.
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Article 23
Five percent of the annual profit shall be allocated to the general reserve until it has
reached twenty percent of the paid-in share capital.
Of the remaining net profit, a dividend of 5 per cent of the share capital shall be paid out.
The remaining balance sheet profit shall be at the disposal of the General Meeting,
subject to the legal provisions regarding reserves.
Article 24
Any dividends that have not been collected within 5 years of their allocation shall be
forfeited to the Company.
V.
Miscellaneous
Article 25
All notices to shareholders shall be validly given by publication in the Swiss Official
Gazette of Commerce. The Board of Directors may also notify shareholders by
publication in any other newspapers.
Article 26
Dissolution of the Company shall be governed by the provisions of the Swiss Code of
Obligations.
The procedure regarding the liquidation of the Company shall be decided by the General
Meeting, unless provided otherwise by law.
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Article 27
The Company acquires HCB "Holderbank" Cement und Beton Holding, previously
known as HCB "Holderbank" Cement und Beton, domiciled in Eclépens, by way of
merger pursuant to Article 748 CO with retroactive effect as of July 1, 1995, with assets
and liabilities according to the merger agreement dated November 8, 1995, and the
merger balance sheet as of June 30, 1995, pursuant to which the assets amount to
CHF 418'783'248.-- and the liabilities to CHF 0.-- and pursuant to which the assets
exceed the liabilities by CHF 418'783'248.--.
As consideration for their 1'144'713 bearer shares with a nominal value of CHF 50.-each, the shareholders of HCB "Holderbank" Cement und Beton Holding (with the
exception of the company itself) will receive 381'571 bearer shares of the Company with
a nominal value of CHF 50.-- each for an issue price of CHF 50.-- each.
Article 28
According to the agreement on the contribution in kind dated December 7, 1995, the
Company acquires from BIH S.A. 25'035 bearer shares of the Société Suisse de Ciment
Portland S.A. and 6'771 participation certificates of the Société Suisse de Ciment
Portland S.A.
The purchase price amounts to CHF 510'000'032.-- as consideration for this purchase
price BIH S.A. will receive 549'569 fully paid-in bearer shares of the Company with a
nominal value of CHF 50.--, valued at CHF 928.-- each. The excess of the value of the
contribution in kind over the nominal value of the bearer shares to be distributed to
the contributor in kind (in an amount of CHF 482'521'582.--) will be retained by the
Company as "agio" (premium).